Summon under the Code of Civil Procedure, 1908: A Practical Overview

The issuance and service of summon form the foundational step in civil litigation, ensuring that the defendant is duly informed of the proceedings and afforded an opportunity to respond. The procedural framework governing summons is primarily contained in Order V of the Code of Civil Procedure, 1908 (“CPC”), supplemented by judicial practice and evolving modes of service.

Contents of Summon

A valid summon is not merely a notice to appear; it is a structured legal instrument accompanied by essential documents. It typically comprises:

• A copy of the plaint;

• The prescribed summon form requiring the defendant to appear, either in person or through a pleader, or both which contains a direction to file a written statement within 30 days, extendable up to a maximum of 90 days in ordinary civil suits (i.e., an additional 60 days subject to sufficient cause) and 120 days in commercial suits (i.e., an additional 90 days subject to sufficient cause and payment of costs);

• Original documents or copies thereof upon which the defendant proposes to rely.

  
  

Modes of Service

Service of summon may be effected through multiple legally recognized modes, depending on whether the defendant is within or outside the jurisdiction of the Court:

• Within jurisdiction: Service may be carried out through Speed Post, e-mail, fax, or by a court officer or by any other means of transmission of documents.

• Outside jurisdiction: Service may be effected through Speed Post, e-mail, fax, or through the court officer of the concerned jurisdiction or by any other means of transmission of documents.

It is pertinent to note that Registered Post Acknowledgment Due (RPAD) has been discontinued by India Post from September 1, 2025.

All costs and expenses associated with service are to be borne by the Plaintiff.

Persons on Whom Service May Be Effected

The CPC permits service upon:

• The defendant personally; or

• Any adult male or female member of the defendant’s family residing with the defendant.

Service upon a servant or a minor does not constitute valid service.

Unserved Summon and Recourse to Electronic Service

Where summon is returned unserved with endorsements such as “address not found” or “defendant not available,” and there exists a reasonable apprehension that the defendant is deliberately evading service, the plaintiff may suggest the Court to effect service through electronic means such as e-mail or WhatsApp. In such cases, the plaintiff should also file an application seeking issuance of dasti summon and specifically request permission for service through e-mail or WhatsApp.

Dasti Summon (Order V Rule 9A CPC)

Dasti summon refers to service effected directly by the plaintiff. This mode is not granted as a matter of right and is generally not permitted at the initial stage. However, courts are more inclined to allow dasti service in urgent matters, particularly where interim relief such as injunctions is sought, as commonly seen in intellectual property disputes. The plaintiff cannot seek exclusive dasti service to the exclusion of other prescribed modes.

Upon grant of dasti service, the plaintiff is required to make bona fide efforts to effect service. Importantly, service through e-mail or WhatsApp even in dasti mode must be expressly permitted by the Court to be treated as valid service. The plaintiff must file an affidavit of service along with supporting proof, including electronic delivery reports (if service through e-mail or WhatsApp is permitted). Compliance with evidentiary requirements under the Information Technology Act is essential to establish the validity of such service. While there is no authoritative precedent in Uttar Pradesh conclusively recognizing service of summon via WhatsApp in civil suits, there is no legal prohibition against such service when specifically directed by the Court.

In cases of deliberate evasion by the defendant, such attempts must be properly documented to support your request for substituted service.

Failure of Dasti Service and Substituted Service

Where dasti service fails, the plaintiff must move an application for re-issuance of summon through the Court and seek substituted service by demonstrating that the defendant is evading service.

Substituted service may be effected by:

• Affixing a copy of the summon at a conspicuous place in the Court-house; and

• Affixing a copy of the summon at a conspicuous part of the defendant’s last known residence, place of business, or place of work.

Alternatively, the Court may direct service by publication in a daily newspaper circulating in the locality where the defendant last resided, conducted business, or worked for gain.

Proof and Acknowledgment of Service

The effectiveness of service must be established through proper acknowledgment and documentation.

• In cases of ordinary service, the court officer; and

• In cases of dasti service, the plaintiff

must obtain acknowledgment of service on the original summons by securing the signature of:

• The defendant; or

• A duly authorized representative; or

• An adult male or female member of the defendant’s family.

The serving individual must record the name, address, time, and manner of service, along with details of any person identifying the recipient and witnessing the service. Subsequently, the original summon, along with an affidavit of service in Form No. 11 (Appendix B CPC), must be filed before the Court. The Court may examine the serving officer or the plaintiff, as the case may be, to determine whether service has been duly effected or whether further steps are required.

Summon in Cases of Unknown Defendants

In cases involving unknown defendants, the plaintiff may seek the appointment of a Local Commissioner to identify such persons. Upon submission of the Local Commissioner’s report, the plaintiff may file an application under Order I Rule 10(2) CPC to implead or substitute the identified individuals as defendants.

Conclusion

The law relating to summons under the CPC reflects a balance between procedural rigor and practical flexibility. While traditional modes of service continue to apply, courts are increasingly accommodating modern methods such as electronic service, particularly where defendants evade conventional modes. However, strict compliance with procedural and evidentiary requirements remains essential to ensure that service is legally valid and enforceable.